Mr. Rahul Shankar Koushik vs Mr. Shankar Narayan Koushik And ...
2023 Latest Caselaw 10378 Bom

2023:BHC-AS:29801
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                               Nikita

                                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  CIVIL APPELLATE JURISDICTION

                                                     WRIT PETITION NO.12574 OF 2023


         NIKITA
         KAILAS
         DARADE
                               Rahul Shankar Koushik                         ... Petitioner
        Digitally signed by
        NIKITA KAILAS
        DARADE
        Date: 2023.10.10
        10:31:06 +0530
                                         V/s.
                               Shankar Narayan Koushik and Ors.              ... Respondents


                               Mr. Tejas Desmukh a/w Ms. S.S. Mahanty a/w Mr.
                               Anshuman Deshmukh for the Petitioner.
                               Mr. Abhijit Sarvate a/w Mr. Prasad Jadhav i/b Mr.
                               Ajinkya Udane for the Respondent.



                                                              CORAM    : AMIT BORKAR, J.

                                                              DATED    : OCTOBER 9, 2023
                               P.C.:

1. The challenge in this petition under Article 227 of the Constitution of India is to the order passed by the Trial Court directing the plaintiff to pay proper court fees on the valuation of the suit properties in the exercise of powers under order 7 rule 11 of CPC.

2. The facts relevant to the adjudication of the issue involved are as follows:

3. The petitioner claims that his mother executed Will on 6 th June 2017, in his favour. On 20th November 2019, the petitioner filed Civil Miscellaneous Application No.1463 of 2019 seeking probate of the Will. The respondent contested the application on

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merits. By order dated 25 November 2020, the Trial Court converted the civil miscellaneous proceedings into Special Civil Suit No.1369 of 2020.

4. After converting the proceedings into suit, respondent Nos.1 and 2 applied to Order 7 Rule 11 (c) seeking direction against the petitioner to pay deficit Court fees. The petitioner contested the application by filing a reply. By order dated 12th July 2023, the Trial Court directed the petitioner to pay the proper Court fee stamp on the valuation of the suit property, failing which the plaint shall stand rejected on the ground of non-compliance under Order 7 Rule 11 (c). Said order is the subject matter of challenge in this petition.

5. Learned advocate for the petitioner submitted that under Section 29, read with Clause 10 of Schedule (1) of the Bombay Court Fees Act, 1959, the application for probate is made chargeable on payment of fixed court fees. Ad-valorem court fees stamp needs to be paid only after the grant of probate and not before such adjudication. In support of his contention, he relies on the Judgment of this Court in the case of Shashikant Gangadhar Thorat and Anr. Vs. Punja Gangadhar Thorat and Ors. reported in 2011 (5) Mh. L.J. 245 and Thrity Sam Shroff Vs. Shiraz Byramji Anklesaria and Anr. reported in 2007 (4) Mh. L.J. 56.

6. Per contra, the learned advocate for the respondents submitted that as per Clause 10 of Schedule (1), the petitioner is required to pay the maximum Court fee as per the Court Fees Act. According to him, under Clause 10 of Schedule (1), the present

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petitioner must pay the requisite Court fee before adjudicating his claim on merits. In support of his contention, he relied on the Judgment of the Karnataka High Court in the case of Anthony Swamy Vs. Chowramma LAWS (KAR) 1988 (7) 2017 and Miss Pressy Pinto vs. Rony Maxim Pinto and Ors. AIR 2009 Karnataka

157.

7. Having heard the advocates for the parties, for the adjudication of the issue involved, it is necessary to cull out relevant provisions of the Act, which are as follows:

"29. Payment of court fees in respect of probate and letters of administration.-- (1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form outlined in the Third Schedule. The Court is satisfied that the fee mentioned in No. 10 of the First Schedule has been paid on such valuation.

(2) The grant of probate or letters of administration shall not be delayed because of any report made by the Collector under section 28, sub-section (3)."

Clause 10 Schedule 1 of the Bombay Court Fees Act, 1959.

10. Probate of a When the amount or Two per cent. will or letters of value of the property administration in respect of which with or without the grant of probate will annexed. or letters is made exceeds one thousand rupees, on the amount or value up to fifty thousand rupees

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When the amount or Four per cent. value of the property in respect of which the grant of probate or letters is made exceeds fifty thousand rupees, on the part of the amount or value in excess of fifty thousand rupees up to two lakh rupees.

When the amount or Six per cent. value of the property in respect of which the grant of probate or letters is made exceeds two lakh rupees, on the part of the amount or value more than two lakh rupees up to three lakh rupees.

                               When the amount or           Seven and a
                               value of the property        half per cent,
                               in respect of                subject to a
                               which the grant of           maximum of
                               probate or letters is        75,000 rupees.
                               made exceeds three
                               lakh rupees, on the
                               part of the amount or
                               value more than three
                               lakh of rupees :

                               Provided that when,
                               after the grant of a
                               certificate under Part
                               X of the Indian
                               Succession Act, 1925,
                               or under Bombay
                               Regulation VIII of





                                                            26-WP-12574-2023-F.doc


                               1827       or      any
                               corresponding law for
                               the time being in
                               force, in respect of
                               any property included
                               in an estate, a grant
                               of probate or letters
                               of administration is
                               made in respect of
                               the same estate, the
                               fee payable in respect
                               of the later grant
                               shall be reduced by
                               the amount of the fee
                               paid in respect of the
                               former grant.

8. On a conjoint reading of Section 29 read with Clause 10 Schedule (1), in my opinion, it is evident that Clause 10 of Schedule (1) makes probate of a Will or letters of administration with or without will chargeable for Court fees. Section 29 is couched for negative language. It restrains the Court from granting probate or letters of administration until the petitioner files a valuation of property in the form set out in the third Schedule, and it is only after the Court is satisfied that such Court fee has been paid that the Court will grant probate or letters of Administration.

9. Therefore, the stage when Section 29 gets attracted is before the issuance of probate or letters of Administration. Unless and until the Court concludes that the petitioner is entitled to probate, in my opinion, there is no question of such petitioner paying the Court fee on probate. As held earlier, clause 10 of Schedule (1) makes only probate or letters of Administration chargeable for

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Court fees. Pertinently, neither the application for probate nor the suit subsequently converted has been made chargeable under Section 29 of the Maharashtra Court Fees Act, 1959, to pay Court fees.

10. The observations derive support from the Judgment of this Court in the case of Shashikant Gangadhar Thorat (supra). This Court was concerned with proceedings where the petitioner filed a miscellaneous application for issuance of probate, which was contested. In such proceedings, the opponent filed an application raising the issue of maintainability of such an application for want of requisite Court fees. The Trial Court, after framing necessary issues, concluded that the applicants therein had not paid sufficient Court fees. It is not clear from the facts recorded by the Court whether it was converted into a suit. However, in my opinion, observations made in paragraphs 8 to 11 are instructive for a decision on the point raised. This Court considered the scheme of the Maharashtra Court Fees Act, 1959. After taking into consideration Section 29 and Clause 10 of Schedule (1), this Court held that payment of Court fees would have to be made only when the Court is to pass an order entitling the petitioner to grant probate. This Court observed that the Act nowhere contemplates payment of court fees on an application for grant of probate. In a contentious matter, it is observed that if the Court concludes that an order of grant of probate is not to be made in such circumstances, no court fees are required to be paid or payable.

11. I am in agreement with the observations made by this Court in the case of Shashikant Gangadhar Thorat (supra). Therefore, in

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my opinion, even in relation to a suit converted from an application for probate, relevant provisions which require a petitioner to pay court fees are Section 29 of the Act read with Clause 10 of the Schedule (1). As held earlier, Such eventuality will arise only after the Court, considering the merits of the suit, concludes that the plaintiff is entitled to probate. Therefore, in my opinion, the Appellate Court is not justified in directing the petitioner to pay the court fees as per the valuation of the suit property.

12. For the reasons stated above, the impugned order cannot be sustained. Hence, the following order.

13. The impugned order is set aside.

14. It is clarified that the petitioner will be required to pay necessary court fees if the Court concludes that the petitioner is entitled to probate.

15. The writ petition stands disposed of in the above terms. No costs.

(AMIT BORKAR, J.)